Shadow of Power (20 page)

“A maid would have to use a crevice tool to vacuum in the cracks,” says Prichert. “And there was evidence that this had not occurred at any time in the recent past.”

“And what evidence was that?” asks Tuchio.

“There were particles, small tufts of dust at or near the area in the crevices where both strands of hair, the one blond and the single brown hair, were found.”

“And what if anything did you conclude from this?”

“That the area of the chair in question, the crevices along the back cushion at the level of the seat, had not been vacuumed recently.”

I would give Prichert the Good Housekeeping Seal of Approval if he weren’t doing such a good job undermining our evidence.

“So what you’re saying is that those two strands of hair could have been there for some time?”

“Yes.”

“In your opinion could they have been there as long as a week?”

“Yes.”

“Could they have been there for several weeks?”

“It’s a possibility. At some point you would expect them either to migrate deeper into the crevice of the upholstery or to fall victim to a cleaning, in which case they would be removed.”

“If they were there for a long time, would they disintegrate?” asks Tuchio.

“The hair shaft itself will resist deterioration for years. In this case neither of the evidentiary strands of hair included a follicle or any tissue; they were broken at the shaft. So there is no way to determine when the hair shaft itself was parted from its owner. Determining how long they’d been there at that location would at best be a guess.”

“Did you find any evidence of blood on either strand of hair?”

“Yes. Under microscopic examination both strands of hair revealed substantial evidence of dried blood.”

“And what if anything did you conclude from this?”

“That based on the fact that the victim’s blood had run into the crevices at the site where each of these hair strands was located, I concluded that it was not possible to determine whether either strand was deposited on the chair at the time of the commission of the crime or at some point much earlier and was therefore entirely unrelated to the crime.”

“So is it your opinion that the questioned hair samples found on or
in the crevices of the subject chair are inconclusive in terms of any evidentiary value?”

“That would be my opinion, yes.”

“Let’s turn to the unidentified hairs in the bathroom. Where did you find these?”

“Almost all of them were vacuumed from under the toe kick at the bottom of the built-in bathroom counter. There is a tight space there where the wood at the bottom of the counter meets the tile floor. Most of the questioned hair samples found in the bathroom were located there. There were, I think, two loose unidentified hair samples that were just under the toe kick. Both of these I collected with tape. The others I vacuumed.

“And the colors of these samples?”

“Oh, it was the United Nations,” says Prichert. “Bathrooms tend to be that way.”

Everybody laughs.

Tuchio is trying to put as much distance as possible between any of the unidentified hair evidence and the victim or his blood. He doesn’t want any ghost perpetrators popping up on our side of the case, a nameless, faceless killer with three hairs on his head.

“Let’s take the two loose samples of hair that you found just under the toe kick in the bathroom. What color were they?”

“Blond.”

“Anything else you can tell us about them?”

The witness goes back to his notes. “One of the samples was four inches, the other was just under two inches. They were broken at the hair shaft—that is, they were not pulled out of the scalp, and under microscopic examination they appeared to be of similar origin. In other words, under the microscope the characteristics of both samples were sufficiently similar that I concluded they were from the same person. In fact, this was the case with most of the hair samples I found in the bathroom.”

Prichert explains that bathrooms are the place where people routinely comb and brush their hair, often causing breakage or shedding. So you would expect multiple hair samples from the same owner at that location. “I found the samples on the floor under the toe kick of the sink and counter area.”

The prosecutor has the witness describe the area of the counter toe kick in the bathroom. Prichert explains that this is a recessed area running along the front of the bathroom counter at floor level, approximately three to four inches high and the same dimension deep. As the term implies, it is where your toes go when you belly up to the counter to brush your teeth.

“So,” says Tuchio, “if you were standing—say, a maid with a mop—while the mop might fit under this area of the toe kick, would the maid be able to see back into this area to clean?”

Tuchio is trying to go to the same place he went with the chair in the living room, ancient hairs. “Objection. Calls for speculation,” I say. “The witness is not an engineer or an optometrist.”

“The observation is something within common knowledge,” says Tuchio.

Quinn weighs the issue in his head. “The witness can answer.”

“Probably not.”

The inference here again is that the hairs in the bathroom could have been there for some time.

Tuchio knows that the road to reasonable doubt is paved with tiny bricks of imponderables, pesky items in the state’s evidence raising questions for which there are no answers. He’s done a good job diminishing the use of this evidence in our case, but he has missed one point, and I will catch it on cross.

Except for the shoe impressions, much of what follows is window dressing on the state’s case. The heavy hitters will come later, the medical examiner who will testify that the killing was a crime of rage, fingerprint experts who’ll tie Carl to the pinkie print on the hammer handle and the four fingerprints on the floor, and the capper—the two witnesses the cops have lined up, Carl’s former friends who, if Tuchio is to be believed, will step forward with shovels to bury him.

Prichert tells the jury that in addition to the massive amounts of blood in the living room and entry he also found traces, in the form of minute streaks of human blood, on the tiles of the bathroom floor. According to the witness, these resembled similar striations of blood found on the exterior of the plastic raincoat. Prichert discovered that when
they laid the raincoat on the tiles in the bathroom, the blood streaks on the floor and those on the raincoat lined up.

“Did you form any opinions or conclusions based on these findings?” asks Tuchio.

“Yes. It’s my opinion that at some point after the victim was killed, the perpetrator entered the bathroom, where an attempt was made to remove blood from the exterior of the raincoat by laying it on the floor and wiping it, probably using a bath towel; that the raincoat was then wrapped in this towel; and that together the two items were then discarded where they were later found by police.”

Prichert also notes that according to housekeeping, though they cannot be certain, it appears that two towels were missing from the hotel suite—a large bath towel, later found in the Dumpster with the raincoat, and another, smaller hand towel that police never found.

Next Tuchio pulls three evidence photos from the cart and has the witness identify them. Two of these are close-ups of items spattered with blood, the large sample case that was on the floor next to the chair where the victim was killed, and a legal-size, zippered, leather portfolio that was on a table near the television. The third shot is of the attaché case that was found open, lying on the couch in the living room out of the line of spatter. Prichert identifies the items in the photos. Then Tuchio brings him to the point.

He directs the witness’s attention to one of the photos, a shot of the attaché case.

“Do you see that mark, that little smudge on the leather right next to the lock?”

“I do.”

“Did you have occasion to examine that mark in your laboratory?”

“I did.”

“Can you tell the jury what that mark is?”

“It’s a bloodstain.”

“Human blood?”

“Yes.”

“Did it belong to the victim?”

“Yes.”

“Can you tell the jury whether following your examination of that spot you formed any opinion as to how it got on the attaché case?”

“Looking at the stain under magnification, I observed minuscule, microscopic patterns not unlike brushstrokes in the dried blood at that spot. These strokes were made by the fibers from a fabric, probably cotton. Based on my examination, I concluded that the mark was a transfer stain imparted when a cloth fabric soaked in blood made contact with the leather, and that this contact was probably effected in an attempt to open the lock.”

Tuchio is trying to deal with this, because he knows if he doesn’t, it will fall into my lap. These little smudges of blood, some of them larger than others, were found on the attaché case, the top of the leather portfolio, and the sample case, though on the case they were difficult to make out because, since this was close to Scarborough’s chair, large areas were saturated with blood.

“Let me ask you, with regard to the attaché case, did your examination reveal anything else?”

“Yes. There were similar patterns on the handle where it was touched, on the edge at the top where it was opened, as well as traces of dried blood, again showing evidence of fiber patterns, inside on the bottom of the case.”

“And did you form any conclusions based on these findings?”

“Yes. It appears that someone, probably wearing gloves soaked with blood, opened the case and went through it.”

“Do you know whether they took anything?”

“No.”

Harry and I have had Prichert’s forensics report for months, so I know what’s coming next.

According to the witness, similar evidence of entry and pawing was found in the sample case, but not in the leather portfolio. Prichert says the portfolio was empty and that anyone attempting to open what was essentially a large zippered leather envelope with blood-soaked gloves would of necessity have left stains inside. There were none, either on the outside or the inside.

For Tuchio and the police, this is a puzzle. If anything was taken, it wasn’t found in Carl’s apartment when they turned it upside down
during their search. They have also excluded robbery, either as the motive or as a passing frolic after the murder. Scarborough was wearing an expensive Rolex and a two-carat diamond ring, and he had more than three thousand dollars in cash in his wallet when they found his body.

Tuchio quickly passes over all this and gets to the point he wants to make: the gloves. If Carl was wearing gloves when he killed Scarborough, how did his pinkie print get on the hammer along with the other three prints on the floor?

According to the witness, the answer to this question is found back in the bathroom, on the tile floor. There, several fine cotton fiber transfer marks similar to those found on the attaché case were discovered on the bathroom floor. But these were not small dots the size of a fingertip. They were larger, one of them more than three inches in length.

“What, if anything, did you conclude from these transfer marks, the ones on the bathroom floor?” asks Tuchio.

“Based on the evidence, everything I examined, the entire pattern, it would be my opinion that at some point, probably at the same time that the raincoat was wiped down, the perpetrator removed the gloves from his hands, and at that point one or both of the gloves brushed the floor.”

“Do you have any idea what might have happened to these gloves?”

“No.”

The police have never found them.

Having disposed of all the nitty-gritty details they can’t explain, Tuchio moves to the one they can: the shoe impressions left behind in the blood at the entry hall.

The prosecutor has Prichert identify the two dark running shoes already in evidence. These are the Nikes with traces of blood on the soles found in Carl’s apartment the day they arrested him. The bailiff sets up the overhead projector, and within seconds the first transparency is shot up onto the screen. It shows a picture of the right shoe impression lifted from the tiles of the entry floor. Next to it is an impression lifted at the crime lab from the sole of the right shoe belonging to Carl, all the little swirls and marks, jurors leaning over the rail in the box to get a better look.

You don’t need a microscope to see it. Right down to the tiny breaks
in some of the ridges where the wear pattern on the sole has eroded them, like the whorls and ridges of a fingerprint, the two images are identical.

If it’s possible, the transparency of the left shoe is even more dramatic. There is a small V-shaped cut near the heel, where Carl obviously ran over something sharp. It isn’t large, but magnified as it is on the screen, all of the cut’s peculiar and jagged edges stand out like a mirror image on the side-by-side impressions.

Two of the female jurors in the box are nodding their heads, another is standing bent over the rail looking closely. Almost all of them are making notes. That it proves a point not in dispute, the fact that Carl was there, can easily get lost in the clarity and definitive nature of the visual evidence. It makes you wonder, when the time comes for a verdict, will they ask themselves,
What do I believe—the picture I saw with my lying eyes or the spin of a hired lawyer in the courtroom telling me what it means?

W
hy would the killer remove the gloves before he left the room?” This is my opening question to Prichert on cross-examination.

“The gloves had blood all over them. You’re not going to leave the room and walk through a busy hotel with your hands dripping blood.”

“Why didn’t he leave the gloves in the room?”

“I don’t know.”

“How can you be so certain that he didn’t take them off after he left the room?” This is the question. I can see Tuchio looking up at his witness, hoping he’s caught the drift.

Implicit in my question, of course, is the fact that my client could not have been wearing gloves when he left the room. If so, how did his fingerprints get all over the entry floor and on the hammer?

“It doesn’t fit the evidence,” says Prichert. “Because it doesn’t account for the smears, the transfer marks on the bathroom floor. Or any of the other evidence.” He’s sticking to his story. “For example—”

“I think you’ve answered the question.”

“Let him complete his answer.” Tuchio, slouched in his chair, directs this to me, but for the judge to rule on. “Your Honor, counsel asked a question, the witness should be allowed to complete his answer.”

“Sustained. You can answer the question,” says Quinn.

“For example, if he was wearing the gloves when he left the room,
he would not have left fingerprints on the floor in the entry,” says the witness.

Prichert turns it around on me in front of the jury and force-feeds me the theory of their case.

“Also, the blood smears on the handle of the door on the way out of the room. Gloves would be inconsistent with this evidence. Those smears were made by bare hands moving too quickly to leave clear latent prints.”

Carl must have been flying at the speed of light on his way out of that room. From the smeared prints all over it, you might have thought he was frisking the door. Forensics couldn’t get a single print that didn’t resemble the inkblots on a Rorschach test, not that it matters given the bonanza of evidence they found on the entry floor.

“Of course, your answer assumes that the fingerprints on the floor and around the hammer belong to the killer and not someone else?” I say.

“Yes, but the issue is whether that assumption is reasonable,” says Prichert, “and in this case I would say that it is eminently reasonable, considering the absence of physical evidence pointing to any other possible perpetrator.” He sticks his sword in me one more time.

When I turn away from Prichert, I am greeted by Detective Detrick sitting at the prosecution table. If the toothy grin is any indication, he’ll be organizing a human wave out in the audience any second.

“Let me ask you, if the killer took off the gloves in the bathroom, why were there no prints found at that location?”

“I would have to assume it was because he was very careful,” says Prichert.

Of course this begs the question under their theory: Why was Carl so careful in the bathroom only to leave finger paintings all over the entry-hall floor? After being stabbed twice, I leave this as one of those rhetorical items you drop on the jury in closing argument, where Prichert won’t be hiding behind a bush to give me an answer. If I were to pop the question to him here on the stand, he would no doubt say,
I don’t know. You’d have to ask him.
The “him” in Prichert’s answer naturally would refer to the killer, but you can bet that the glasses on the neon nerd would be flashing their beams at Carl. At the moment I have no
need to be walking around with that particular pike sticking out of my chest.

I move on to the extraneous hairs.

“Mr. Prichert, can you tell the jury the purpose of gathering hair and fiber evidence at the scene of a crime?”

“To examine and preserve them,” he says.

“Yes, but for what purpose? What do you use them for?”

“Well, in the case of hair, you would compare, say, a questioned hair sample found at the scene of a crime with a known hair sample taken from a suspect, or it might be a known hair sample, say, taken from a victim and transferred to an article of clothing belonging to a suspect.”

“Is there some vast database of known hair samples maintained somewhere so that if you find an unidentified hair at a crime scene, you can go there and compare it in an effort to find a match?”

“Not in the way you describe it,” he says. “There may be some small collections of known samples held by some law-enforcement agencies, but these would be specialized, confined to certain crimes. Repeat offenders, for example, in sexual-assault cases.”

“But that wouldn’t apply in a case like this?”

“No.”

“So in this case you’re left to compare the so-called questioned hair samples found at the scene with known hair samples that you find where?”

“On various parts of the body. It depends on the particular crime.” Like a cabdriver, Prichert knows where I want to go, but he takes me on a ride through the park.

“But whose body?”

“Ah. I see what you mean. That would depend.”

“On what?”

“Well, for example, you might want to take hair samples from known subjects who might have had occasion to contaminate the scene. First responders, for instance, police officers or emergency medical personnel who might have come on the scene.”

“Was any of that done in this case?”

“Yes.”

“And who did you take those samples from?”

“Maids at the hotel, the officers who first arrived at the scene. I think we may have even taken a few hairs from Detective Detrick over there.”

“That’s why some of us have flat feet and bald heads,” says Detrick. Everybody laughs.

“I hope you used pliers to pull these from the detective’s head?” More laughter.

“Aw, that’s mean.” He’s still laughing. Detrick may be the enemy, but as a person he is quite affable, the kind who might make a good neighbor if you didn’t have to drill his teeth every other day in court.

Quinn taps his gavel and brings us back to the subject at hand.

“These people that you took hair samples from, were any of them considered suspects in this case?”

“No.”

“Even the maids, the other hotel employees you might have taken samples from?”

“No. Certainly not at that point.”

“So other than torturing Detective Detrick, what was the purpose of all this?” A little laughter in the audience.

“We were clearing the scene. One of the things you have to do before processing a crime scene is to identify all the people who may have been there for legitimate purposes and who may have contaminated it by inadvertently leaving trace evidence—”

“Or footprints?” I ask.

He nods. “Sometimes.”

“But not this time, right?”

“I don’t understand the question,” he says.

“Then let me clarify it for you. You took samples of hair from officers at the scene, some hotel employees, and I emphasize the word ‘some,’ because in your mind, or perhaps at the direction of Detective Detrick, these persons were determined not to be suspects in this case, is that correct?”

“That’s right.”

“And this was done so that you could eliminate any trace evidence connected to them that you might find at the scene?”

“That’s correct.”

“But when you got to the defendant, you weren’t treating him as just another hotel employee who left trace evidence at the scene, were you?”

“No.”

“Why not? Was it simply because of the quantity of evidence, the footprints and fingerprints that belonged to him at the scene?”

“Objection,” says Tuchio. “The question assumes facts not yet in evidence.”

“Your Honor, the prosecutor in his opening statement has already told the jury that he intends to prove that the fingerprints and shoe impressions belong to my client. There is no dispute over that. The defense will stipulate to those facts,” I tell him.

In fact, I have offered this stipulation to Tuchio, who has refused it, wanting instead to trot out all these details in front of the jury, with pictures they can remember.

“I renew my objection,” says Tuchio.

He’s trying to break my rhythm.

“Overruled. I’ll allow the question,” says the judge.

“Was the only reason that you refused to clear Carl Arnsberg from the scene as you did the other hotel employees based on the quantity of evidence, his fingerprints and shoe prints found at the scene?”

“I don’t know. I didn’t make that decision.”

“Who did?”

For a second he looks like one of those dolls on the dash of your dad’s car, head on a spring. “Detective Detrick,” he says. “He was in charge of the case.”

I turn and look at Detrick. He knows he will be heading back to the woodshed when I get to my case in chief.

“Let me ask you.” I’m back to the witness. “Did you take any samples of hair from my client, the defendant, Carl Arnsberg?”

“Yes.”

“Did you take any samples of hair from any other suspects besides my client?”

“No.”

“So to your knowledge there were no other suspects who were even considered with regard to the commission of this crime?”

“I don’t know. All I know is that hair samples were not taken from any other suspect or person of interest.”

“Mr. Prichert, let me ask you, did you find any questioned samples of hair at the scene that matched the samples you took from my client, Carl Arnsberg?”

“No.”

“Then let me get this straight, so that I understand. According to the state’s theory of the case, the position taken by Mr. Tuchio, my client entered the room, bludgeoned the victim to death with a hammer, went back out into the hall, retrieved a tray with food on it, and brought it into the room, putting it on a table. Then, according to this theory, my client searched the room looking for something, went into the bathroom, where he wiped down the raincoat, took off a pair of gloves, then proceeded to leave, and—let’s not forget—then panicked or was startled by something and left shoe impressions in the entry, where he slipped and fell, leaving his fingerprints on the floor as well as on the murder weapon, and then finally left the room—and during all this he never dropped a single hair from his head or his body anywhere in that suite? Is that what you’re saying?”

“No. I’m simply saying that we didn’t find any questioned hairs that matched your client.” The witness is good. He’s only going to play in his ballpark. As far as Prichert is concerned, the re-creation of events at the scene of the crime is a boat that Detrick and Tuchio have built. Let them sail it out to sea.

What is becoming abundantly clear is that the cops jumped before they had all the pieces to the puzzle. If Carl hadn’t run from the scene, we wouldn’t be here today. If he had gone to his supervisor and reported what he found, the police would have questioned him, taken his prints—both shoes and hands—plucked a few hairs from his head, and cleared him, at least initially. That’s what they did with the other hotel employees. No doubt they would have checked him out, found his friends, and probably even discovered that Carl had met in the bunker with his buddies and talked about doing evil things to Scarborough. But that would have taken time, and in that time the forensics experts from the crime
lab would have been piecing together all the little details that would have told them that Carl didn’t do it, at least not in the way that Tuchio and Detrick have described.

It may be a minor point, no doubt one that Tuchio will step around in his closing argument. But I take Prichert over the falls on it anyway.

“During your investigation at the scene, did you find any small bloody transfer marks on or under the tray with the food or on the tablecloth underneath it?”

He thinks about this for a moment. “No.”

“How would that be possible if the perpetrator, immediately after killing the victim and still wearing these blood-soaked gloves, retrieved that tray and the tablecloth from the hall outside and then brought them in and placed them on that table?”

Prichert thinks about this in silence for a long moment. The tray, how did it fly into the room? “It’s probably not possible in the scenario you present,” he says.

“That’s not my scenario. That’s the scenario presented by Detective Detrick when he testified earlier.”

“Whoever crafted the scenario, it’s inconsequential,” says Prichert. “Change the order in which the tray came into the room and it’s entirely possible that there would be no blood on it.”

“How, for example?”

He smiles at me. “I don’t know. I’m not a crime-reconstruction expert.”

“You mean like Detective Detrick?”

He looks at me but doesn’t say anything. Unlike Detrick, Prichert is smart enough to avoid playing God, rearranging the cosmos of physical facts from the stand. He knows that somewhere, sometime, something will be punching a hole in the side of the universe when he’s done.

I let it drop. Tuchio and I will argue over this in closing. He will try to finesse it, bury it like a bone, and I will try to dig it up. In the end it is probably one of the multitude of items the jury will sleep through—bloody little smudges that aren’t there, unlike the fingerprints and shoe impressions that are.

I’m just about to move on to my centerpiece with Prichert when I
remember the little item that Tuchio ignored in his direct questioning of the witness.

“One last question on hair,” I tell him. “When you testified earlier, you stated that there were a number of questioned hair samples, those with unidentified owners you said were collected from the area around the toe kick under the counter in the bathroom.”

“That’s correct.”

“And I think you testified that two of these—blond samples, I believe—were collected with tape from under the toe kick?”

“That’s right.”

“And that from your examination, both of these appeared to be hair samples from the same unidentified person?”

“Yes, the characteristics of the hair were sufficiently similar in each case, and that’s what I concluded. Yes.”

“You also stated that you found a number of blond hair samples—unidentified, what you call questioned samples—out in the living room, some of them on or around the chair near the victim?”